State's high court suppresses key evidence in Brewster drug arrest

Search warrant for marijuana-growing operation must show suspect not registered for medical purposes, ruling says.

By K.C. Myerskcmyers@capecodonline.com

BREWSTER — The police did not lack evidence that Josiah Canning was growing marijuana at his Route 6A home.

Officers could smell it from the street, according to court documents. Detectives compared the electrical use at Canning's home with that of his neighbors and determined it was "astronomical," documents say. Once they executed a search warrant in May 2013, members of the Cape Cod Drug Task Force said they found 70 plants under grow lights. In one room, classical music played to encourage plant growth, according to court documents. Investigators also seized almost $3,000 in cash and 1.2 pounds of dried marijuana, along with equipment used in cultivation, documents say.

And Canning himself told police in a recorded interview that he had been growing and selling marijuana for a long time and earned about $1,000 a week doing so, according to court documents.

At the time, he did not have a medical marijuana card or a license to cultivate marijuana for medical purposes, Brewster Police Chief Richard Koch said.

And yet in a landmark decision Monday, the state Supreme Judicial Court in effect threw out the case. In obtaining the search warrant, it was not enough for police to show probable cause that Canning was growing marijuana, the court ruled; they also needed to establish that he was not registered to grow the plants for medical purposes.

Specifically, the high court upheld an Orleans District Court ruling to suppress key evidence related to the arrest of Canning, 37, who was charged on May 30, 2013, with possession with intent to distribute marijuana, distribution of marijuana and conspiracy to violate drug laws. After searching his home, police also arrested his pregnant girlfriend and his father, who lived with him. Charges against the two of them have since been dropped, according to court documents.

The arrest came just six months after Massachusetts voters approved a November 2012 ballot initiative to legalize medical marijuana. And it occurred just days after the state Department of Health came out with the final regulations on how the registration aspects of the law were to be carried out.

“The central question presented is whether, with the act in effect, police may obtain a search warrant to search a property where they suspect an individual is cultivating marijuana by establishing probable cause that cultivation is taking place or are required to establish probable cause to believe that the individual was not registered, or licensed, to do so,” wrote Associate Justice Margot Botsford.

“In accord with cases relating to other types of license regimes, we conclude that, if police seek a warrant to search such a property for evidence of illegal marijuana possession or cultivation, they must offer information sufficient to provide probable cause to believe the individual is not properly registered under the act to possess or cultivate the suspected substance.”

"The SJC did the right thing and I’m very happy," Canning, who still lives on Main Street, said Monday.

"You cannot just raid people’s houses," he added. "I'm not a scumbag drug dealer ... I’m not bashing the police. But I had a pregnant wife, she was put down on the floor, shoved around and put in a cold cell. She wasn’t even given any blankets. I heard her crying for hours."

Canning denied that he ever admitted to selling marijuana. He said he possessed a medical marijuana card, for migraines, and was growing for his own use at the time of his arrest. Since then, however, he let his card expire, he said. He said he does not grow marijuana anymore.

He said he hopes he can get his 1988 Black BMW 325 and his Ford F250 back. Both were impounded by the state police after his arrest.

“This case was investigated as the new law had passed and the procedures that apply were changing,” Koch said. “A central registry of authorized marijuana growers had not been yet established.

"There is no doubt that the subject was growing marijuana illegally,” Koch added. “But the SJC was clear: The onus is on the police to establish the fact that the subject of such an investigation has not been granted the authority to grow marijuana legally.”

After Canning's arrest, his attorney, Richard Comenzo, of Stoughton, filed a motion to suppress evidence obtained through the search. Orleans District Judge Brian Merrick upheld Comenzo's request. The Cape and Islands District Attorney's Office appealed to the high court.

Assistant District Attorney Elizabeth Sweeney argued that the burden of proof should not fall on the police to make sure the suspect is protected under the medical marijuana act before execution of a search warrant.

That would make "prosecution for cultivation, trafficking, distribution and possession of marijuana virtually impossible," Sweeney said in court documents.

The Department of Public Health now operates an electronic registry so police can check to see who is licensed to possess and grow marijuana, Koch said.

Canning's attorney did not return a call seeking comment. In October 2014, Comenzo was arrested on a charge of possessing and disseminating child pornography and was released on $2,000 bail.

“The courts and the Legislature constantly change the rules of policing,” Koch said. “When they do, it requires training of police officers to comply with the new laws, procedures. We have already made changes in how we would approach a similar situation.”